State Highway Commission v. Newton

• Decision Date: 09 October 1964
• Docket Number: No. 3200,3200
• Citation: 395 P.2d 606
• Parties: STATE HIGHWAY COMMISSION of Wyoming, Apppellant (Plaintiff below), v. Lee NEWTON and Esther N. Newton, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 606

395 P.2d 606

STATE HIGHWAY COMMISSION of Wyoming, Apppellant (Plaintiff below), v. Lee NEWTON and Esther N. Newton, Appellees (Defendants below).

No. 3200.

Supreme Court of Wyoming.

Oct. 9, 1964.

Glenn A. Williams, Asst. Deputy Atty. Gen., Dean W. Clark, Sp. Asst. Atty. Gen., Cheyenne, for appellant.

William G. Watt, Gillette, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

The State Highway Commission of Wyoming, pursuant to § 1-754 et seq., W.S.1957, commenced two eminent domain proceedings for the purpose of appropriating 6.9 acres of unimproved land within close proximity to Gillette, Wyoming, and owned by the defendants Mr. and Mrs. Lee Newton. The acquisition was made for the purpose of constructing a new controlled-access interstate highway and related facilities. The proceedings were consolidated for purposes of trial, and the question of compensation was tried to a jury. By its verdict the jury fixed the value of the land taken in the sum of $7,255.00 and damages to remaining portions of defendants' property in the sum of $250.00. Subsequently the trial court entered an order confirming the verdict, and this appeal by the Commission followed.

The principal claim of error relates to the testimony of two witnesses called by the defendants as experts on the question of damages. Over the objection of the Commission that no proper foundation had been laid, the trial court received in evidence the opinion of the witness Arneson that defendants, as a result of the taking, were damaged in the sum of $8,280.00 representing the value of the land taken, the sum of $3,470.00 representing the value of affected improvements, and the sum of $6,212.00 representing damage to the remaining portion of the property not taken, or total damages in the sum of $17,962.00. Over the same objection and for the same class of damages the witness Mader was permitted to state his opinion that the total damages to defendants were in the sum of $21,065.00.

Upon reviewing the record we are convinced that the objection made was insufficient to challenge the education, training, and experience of the witnesses to function as professional appraisers. Rather, the objection was on the narrow ground that the witnesses on direct examination failed to testify to sufficient supporting facts and data which, as a matter of law, qualified them to express an opinion on the market value of the subject property.

In this regard the witness Arneson, a resident of Fargo, North Dakota, first testified to his general qualifications in appraisal work. He then said that in his inspection and analysis of matters having a bearing upon the valuation of the subject property he went upon all of the land of the defendants consisting of some 840 acres; inspected it; platted it upon a map; and divided it into seven classes, one of which was a 40-acre plot classed as 'urban development' which contained the substantial portion of the acreage being appropriated. He made some investigation of the economic conditions of the town; talked with several people concerning the matter; and particularly observed property being developed all around the town and on 'the edges.' From courthouse records the witness obtained information on some thirty sales of property 'around the city in the developing areas' and from those he selected five or six that he said 'could be used in comparing the value of the land.' He then talked with either the sellers or buyers to ascertain the terms and conditions of the sales. He also testified that his general approach to the problem at hand 'was the comparable sales approach.'

Just recently, in State Highway Commission of Wyoming v. McNiff, Wyo., 395 P.2d 29, 30, we had occasion to inquire into the use of 'comparables' in this type of proceeding. In that case the owner's expert witnesses testified to the detail, including price, of 'comparable sales' said to have been utilized in reaching their opinions. We there recognized the generally accepted rule that if the trial court, upon preliminary inquiry and within the proper exercise of his discretion, is satisfied that sufficient comparability is shown such evidence may be received '(a) as independent substantive evidence of the value of the property' or '(b) as giving an account of the factual basis' upon which the witness relied. In this connection we might say that where 'comparable sales' are available their use in the manner indicated has become the prevailing practice, and although it is this factor that has been a great source of difficulty in the courts, 'The disadvantages arising from the use of such evidence are more than compensated for by the benefits which are likely to come to the jury from its reception.' 5 Nichols, Eminent Domain, p. 431 (Rev. 3 Ed.). See also Epstein v. Boston Housing Authority, 317 Mass. 297, 58 N.E.2d 135, 138.

However, our problem here is not quite the same as in the McNiff case. Defendants' counsel, in attempting to qualify the witness Arneson, brought out that the witness had reviewed some thirty sales of property in the 'developing areas' around Gillette and of those selected five or six that 'could be used' as comparables. Hoping, no doubt, as a trial tactic, that detail of the sales would more effectively be presented to the jury under further voir dire or cross-examination by the Commission, defendants' counsel took the witness no further. It is of this that the Commission complains. Its position is that because the witness stated that his 'general approach' was by the use of 'comparables' no proper foundation was laid for his opinion until the facts and details establishing comparability of each sale to the subject property were shown.

Whether or not the qualifications of a witness to testify as an expert on valuation are sufficiently established is a question for preliminary determination by the trial judge within the proper limits of his discretion. Johnson v. Hanover Fire Ins. Co., 59 Wyo. 120, 137 P.2d 615, 618; Macy v. Billings, 74 Wyo. 404, 289 P.2d 422, 423. There is no fixed standard by which this may be determined. State v. Vaughan, 243 Ind. 221, 184 N.E.2d 143, 147; State By and Through State Highway Commission v. Parker, 225 Or. 143, 357 P.2d 548. Much depends upon the special knowledge, training, and experience of the witness in the art and the preliminary investigation made in preparing to render an opinion on damages to the property in question. So far as this court is concerned, we have long been committed to a liberal view in the matter of foundation for opinion evidence of values. In Davis v. Graham, 31 Wyo 239, 225 P. 789, 795, we mentioned what has become a rather generally accepted rule that even a non-expert may testify to the value of property if his knowledge has been derived through the general avenues of information to which the ordinary businessman resorts to inform himself as to values for the conduct of his affairs. See also 5 Nichols, Eminent Domain, pp. 210, 211 (Rev. 3 Ed.). We can scarcely be expected to lay down a stricter rule for qualification of an expert. Delaware, L. & W. R. Co. v. City of Hoboken, 16 N.J.Super. 543, 85 A.2d 200, 206, reversed on other grounds in Delaware, L. & W. R. Co. v. City of Hoboken, 10 N.J. 418, 91 A.2d 739; International Paper Company v. United States, 5 Cir., 227 F.2d 201, 208, 209.

We would agree with the contention of the Commission that knowledge of available comparable sales is an important test. Turner v. State Roads Commission, 213 Md. 428, 132 A.2d 455, 457. We would agree also that where such sales are used in the manner indicated in the NcNiff case the burden is upon the offerer to satisfy the court of a reasonable degree of similarity. However, just as there is a degree of tolerance from the somewhat exacting foundation for the admission of the price of comparable sales as independent, substantive evidence and the foundation necessary when such evidence is used in support of expert opinion, United States v. Johnson, 9, Cir., 285 F.2d 35, 40, 41, there is tolerance in the foundation for the opinion itself when the use of such information is limited to the general purpose of showing the investigation made by the expert to gain knowledge of the market value of property in the vicinity of the subject property. If there is lack of completeness in the investigation or reliance upon irrelevant factors as the sole basis for knowledge, such as wholly incomparable sales, that will no doubt be developed by further voir dire of opposing counsel under leave of court and is a matter to be considered by the court in its preliminary determination.

With the foregoing in mind we cannot say that the trial judge abused his discretion in permitting the witness Arneson to express an opinion on the value of the property taken. The record shows an abundance of education, training, and experience on the part of the witness in appraisal work and, as stated, no challenge was made on that score. Neither was the witness seriously challenged on the inspection and classification of defendants' property, particularly as to the 40 acres containing the five-acre tract of the subject property classified as 'urban development.' Thus, compliance with the requirements laid down in Barber v. State Highway Commission, 80 Wyo. 340, 342 P.2d 723, 728, was satisfactorily shown. We are satisfied also that the trial court was warranted in determining that the witness had sufficient knowledge of the market value of property in the vicinity. His investigation, as set forth above, appears to have been quite complete. True, he did not specifically identify the comparables finally selected for use as an element for his opinion. However, he did locate the comparables in a general way and there is every indication in the record that the...